Abstract: Submission to the College of Physicians and Surgeons of Ontario

SEAN MURPHY

The Ontario Human Rights Commission made a serious error in 2008 when it attempted to suppress freedom of conscience and religion in the medical profession on the grounds that physicians are "providers of secular public services."

In its public perpetuation of this error, the Commission has contributed significantly to anti-religious sentiments and a climate of religious intolerance in Ontario. Both were on display earlier this year when it became front page news and a public scandal that three physicians had told their patients that they would not recommend, facilitate or do what they believed to be immoral, unethical, or harmful.

The physicians had followed the guidelines of the Canadian Medical Association and the College of Physicians and Surgeons of Ontario. Physicians must advise patients about treatments or procedures they are unwilling to recommend or provide for moral or religious reasons, so that patients can seek the services elsewhere. Physicians are not required help to patients obtain services or procedures they believe to be wrong.

The arrangement is a compromise that safeguards the legitimate autonomy of patients and preserves the integrity of physicians, but it has been continually attacked by activists who want to compel objecting physicians to provide or facilitate abortion and contraception, and, lately, euthanasia. Essentially, the activists assert that physicians have a duty to do what they believe to be wrong because they must not act upon their moral or religious beliefs.

However, it is incoherent to include a duty to do what one believes to be wrong in a code of ethics, the very purpose of which is to encourage physicians to act ethically and avoid wrongdoing. Moreover, one cannot practise medicine without reference to beliefs, whether they reflect a secular ethic or a religious one, and neither a secular ethic nor a religious ethic is morally neutral. Thus, demands that physicians must not act upon their beliefs or must practise medicine in a morally "neutral" fashion are unacceptable because they are impossible.

The demand that physicians must not act upon religious beliefs because medical practice is a secular profession is unacceptable because it is erroneous. The Supreme Court of Canada has acknowledged that a secular society is not faith-free; it includes both religious and non-religious believers, and rational democratic pluralism must make room for them all. The full bench of the Court has warned that to disadvantage or disqualify the exercise of religiously informed conscience in public affairs is an illiberal distortion of liberal principles that offers "only a feeble notion of pluralism."

If it is legitimate to compel religious believers to do what they believe to be wrong, then it is equally legitimate to compel non-religious believers to do what they think is wrong; everyone would have a duty to do what is believed to be wrong. Hence, the compromise worked out by the Canadian Medical Association not only safeguards the integrity of physicians and legitimate autonomy of patients, but protects the community against the temptation to give credence to a dangerous idea: that a learned or privileged class, a profession or state institutions can legitimately compel people to participate in what they believe to be wrong — even gravely wrong — even murder — and punish them if they refuse.

Moreover, one cannot practise medicine without reference to beliefs, whether they reflect a secular ethic or a religious one, and neither a secular ethic nor a religious ethic is morally neutral.

Freedom of conscience and freedom of religion are subject to reasonable limitations, but the mantra, "the freedom to hold beliefs is broader than the freedom to act on them" is inadequate. More refined distinctions are required to address the difficulties that arise in a pluralist democracy. One of them is the distinction between the two ways in which freedom of conscience is exercised: by pursuing good and avoiding evil. There is a significant difference between preventing people from doing the good that they wish to do and forcing them to do the evil that they abhor.

As a general rule, it is fundamentally unjust and offensive to force people to support, facilitate or participate in what they perceive to be wrongful acts; the more serious the wrongdoing, the graver the injustice and offence. It is a policy fundamentally opposed to civic friendship, which grounds and sustains political community and provides the strongest motive for justice. It is inconsistent with the best traditions and aspirations of liberal democracy. And it is dangerous, since it instills attitudes more suited to totalitarian regimes than to the demands of responsible freedom.

This does not mean that freedom of conscience exercised to preserve personal integrity can never be limited. It does mean, however, that even the strict approach taken to limiting other fundamental rights and freedoms is not sufficiently refined to be safely applied here. Like the use of potentially deadly force, if the restriction of preservative freedom of conscience can be justified at all, it will only be as a last resort and only in the most exceptional circumstances.

When the College of Physicians and Surgeons of Ontario receives complaints from patients who have been unable to obtain services they want, the College should help connect the patients with willing service providers. That would be more helpful than attempting to suppress freedom of conscience and religion in the medical profession.

Acknowledgement

Sean Murphy. "Abstract: Submission to the College of Physicians and Surgeons of Ontario." The Protection of Conscience Project (August 3, 2014).

Reprinted with permission from the author and The Protection of Conscience Project.

The Protection of Conscience Project supports health care workers who want to provide the best care for their patients without violating their own personal and professsional integrity.

The Author

Sean Murphy is a Catholic layman. He has made a special study of the documents of the Second Vatican Council and Catholic teaching on sexuality and marriage. His paper on the nuptial meaning of the Eucharist was among three chosen for presentation at the 1993 conference of the Canadian Fellowship of Catholic Scholars, and later published in the conference proceedings. His articles have appeared in Catholic periodicals, including the BC Catholic,Catholic Insight magazine and the Journal of the Fellowship of Catholic Scholars (Canada). Others are posted on the Internet at the Catholic Education Resource Center, Catholic Exchange and the Catholic Civil Rights League website. His comments and responses to attacks on religious freedom and Catholic teaching have appeared in the media, including some BC community papers, the Vancouver Sun, The Province, Xtra West, the Ottawa Citizen, Halifax Daily News, the BC Catholic, and Christian Week. Mr. Murphy retired from the Royal Canadian Mounted Police in 2009 after almost 35 years' police service. While not a specialist in sexual assault, during the course of his service he was responsible for the investigation of current and historical sex crimes against children and adults (including false allegations), leading, in one case, to the conviction of a Catholic priest. This article should not be understood to represent the views of the RCMP or its members.